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ELRCDismissedAppeal No E108 of 2023· [2023] KEELRC 3464 (KLR)

Muravvej Holdings Limited v Mwadzoya (Appeal E108 of 2023) [2023] KEELRC 3464 (KLR)

Employment and Labour Relations Court
23 November 2023
MMM. MBARŨ
1,256 words in judgment
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The bottom line

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Kenya's Employment Court struck out an appeal filed without valid leave, confirming that you must get permission to appeal late before filing the appeal, not after.

What this practically means

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Executive summary

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The appellant sought leave, by application dated 12 October 2023, to appeal out of time against the judgment delivered on 3 September 2021 in Mombasa CMELRC No. 318 of 2018. The delay was attributed to a restructuring of the appellant's law firm during which files, including notices of the appeal, were misplaced and served on the wrong firm. The respondent opposed the application, contending it was res judicata because the appellant had already obtained 30 days' leave to appeal out of time in ELRC Misc. Application E060 of 2021, with a direction to deposit the decretal sum of Kshs. 357,978.58; the deposit was made but no appeal was filed within the 30 days allowed. Mbarũ J set out the framework in Section 79G of the Civil Procedure Act and Section 17 of the ELRC Act read with Rule 8 of the ELRC (Procedure) Rules, 2016, and adopted the Omar Shurie factors of length of and reasons for delay, chances of success and prejudice. On res judicata, the court held that a miscellaneous application has a single purpose and closes once that purpose is met, so the E060 of 2021 orders did not bar a fresh application. However, the correct route was a fresh miscellaneous application, not leave sought within an appeal already on file, which circumvented the statutory scheme. Since the appeal before the court was invalid, the orders sought within it had to fail. The court struck out the appeal and ordered each party to bear its own costs.

Key legal issues

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01

Res judicata as regards a second application for extension of time

Holding

The prior grant of leave in ELRC Misc. E060 of 2021 did not bar a fresh application, because a miscellaneous application closes once its purpose is met; but the appellant could not rely on it having failed to file within the 30 days granted

Reasoning

The court held that a miscellaneous application is ancillary and supplementary, not a civil suit, and ends once its single purpose is fulfilled. The orders issued in E060 of 2021 closed that file. However, the appellant never filed an appeal within the 30 days allowed there, so the fresh application, made over a year later within an already-filed appeal, was procedurally improper.

p. 3
02

Procedure for admitting an appeal out of time

Holding

Leave to appeal out of time must be sought in a properly filed miscellaneous application before the appeal is filed; filing an appeal first and then seeking leave circumvents Section 79G and the ELRC statutory regime

Reasoning

The court applied Section 79G of the Civil Procedure Act and Section 17 of the ELRC Act read with Rule 8 of the ELRC (Procedure) Rules, which allow admission of an out-of-time appeal on good and sufficient cause. It adopted the Omar Shurie factors but held the assessment could only be made in a properly filed miscellaneous application, not within an invalid appeal.

p. 3

Legal principles established

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  • A miscellaneous application has a single purpose and once that purpose is met, the application is at an end
  • The correct procedure is to seek leave to appeal out of time before filing the appeal, not to file an appeal first and then seek leave to admit it out of time

Court orders

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  1. 1.The application dated 12 October 2023 seeking leave to appeal out of time is dismissed
  2. 2.The appeal herein is struck out
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 22 rule 1
  • Civil Procedure RulesOrder 48
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 79G
  • Employment and Labour Relations Court Act, 2011Section 17
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 8

Cases cited (2)

  • Omar Shurie v Marian Rushe Yafar
    Civil Application No. 107 of 2020
  • Mandavia v Ruttan Singh
    Civil Appeal No. 27 of 1967 [1968] EA
On appeal from
Employment and Labour Relations Court (Mombasa CMELRC No. 318 of 2018)
Mombasa CMELRC No. 318 of 2018
Jurisdiction invoked
Section 79G of the Civil Procedure Act; Section 17 of the Employment and Labour Relations Court Act, 2011 read with Rule 8 of the ELRC (Procedure) Rules, 2016; Order 42 rule 6 and Order 22 rule 1 of the Civil Procedure Rules; Section 3A of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Muravvej Holdings Limited v Mwadzoya (Appeal E108 of 2023) [2023] KEELRC 3464 (KLR)", Case Analysis (2023). Appeal No E108 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3464/eng@2023-11-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.